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Removing a Residential Tenant for Non-Payment of Rent

By: Pat Mullins | Posted on: 13 Feb 2017

Removing a Residential Tenant for Non-Payment of Rent

 

The Residential Tenancies Act, 2004, as amended, sets out the procedure, for the purposes of a Landlord, recovering possession, in circumstances where the Tenant has failed to pay rent.

 

It is important that a Landlord has a written Lease, which accords with the provisions of the Residential Tenancies Act, and that the Tenancy is registered, with the Residential Tenancies Board.

 

This Article governs the procedure involved, where a Tenant has continued to occupy, whilst not paying rent, and a Landlord is seeking to recover possession.

 

Prior to the passing of the Residential Tenancies Act, 2004, the Courts had jurisdiction, in relation to ejectments, for non-payment of rent. This all changed, with the passing of the Residential Tenancies Act, 2004.

 

A Landlord must now refer any dispute, with a Tenant, to the Residential Tenancies Board.

 

The first issue, is the service of a Notice to Quit. Typically, the Landlord will serve a 14 day notice, requesting that the arrears of rent be brought up to date. The requirement for such a Notice, is set out in Section 34 of the Residential Tenancies Act, 2004.

 

The next stage of the procedure, is to serve a Termination Notice, provided that the Tenant has not complied with this request, within the 14 day period. The Termination Notice must comply with the requirements of Section 62 of the Residential Tenancies Act, 2004. Landlords must be very careful, to ensure that the Notice complies with the notice periods, set out in Section 67 (2) (aa) of the Act.

 

Should the Tenant continue to occupy the property, at the end of the notice period, set out in the Termination Notice, the Landlord can then refer the matter to the Residential Tenancies Board, for Adjudication.

 

The application is filed online, with the Residential Tenancies Board. Both the Landlord, and the Tenant, can then furnish documentation, supporting their respective positions, to the Residential Tenancies Board.

 

An Adjudicator is then appointed, for the purposes of hearing the matter.

 

The matter then proceeds to a full Adjudication Hearing, before the Adjudicator, following which, the Adjudicator will issue an Adjudication Report. Provided that the Adjudicator holds that the Landlord has complied with his, or her, obligations, in relation to Section 34, Section 62, and Section 67, of the Residential Tenancies Act, the Tenant will be required to vacate the property, usually within 14 days, of the issue of the Determination Order.

 

There is no provision for costs, in relation to the Adjudication Hearing. It may take some weeks, for the Adjudication Report to be published.

 

The parties are then notified of the Adjudicator’s Determination.

 

Under Section 121 of the Residential Tenancies Act, 2004, the PRTB will prepare a Determination Order, unless an Appeal, against the Adjudicators Determination is made, under Section 100 of the Residential Tenancies Act, 2004, within 21 days, of receipt of the Adjudicators Determination.

 

The matter can be appealed to the Tenancy Tribunal.

 

The hearing before the Tenancy Tribunal, is similar to the Adjudication. However, there are three members of the Tribunal present, for the purposes of the hearing. A stenographer is also present.

 

If the Tenancy Tribunal is satisfied that the Appeal, by the Tenant, is not sustained, then the Tenancy Tribunal will uphold the Notice of Termination, and issue a Determination, to the effect that the Tenant should give up possession, normally within a period of 35 days, of the date of issue of the Determination Order, by the Tenancy Tribunal.

 

The Determination Order becomes binding, after a period of 21 days, from the date of issue of the Determination Order, unless an Appeal is made, by any of the parties, directly to the High Court, on a point of law, pursuant to Section 123 (3) of the Residential Tenancies Act, 2004.

 

Provided that no Appeal follows to the High Court, then the Tenant must vacate the property, at the end of the period, set out in the Determination Order, of the Tenancy Tribunal.

 

In the event that the Tenant still remains in occupation, without paying any rent, then the Landlord has to enforce the Determination Order.

 

In order to do so, an Application must be made, by way of Notice of Motion, to the Circuit Court, for the County, in which the property is located, pursuant to Section 124 of the Residential Tenancies Act, 2004.

 

A Grounding Affidavit should also be filed, giving a brief history of the matter, and exhibiting the Adjudicators Report in the Residential Tenancies Board, and the Determination Order, issued by the Tenancy Tribunal. If the Court is satisfied, that it is appropriate to do so, the Court will grant an Order, directing the Tenant to vacate the property.

 

Once this Order is perfected, it can then be served on the Tenant. If the Tenant continues in occupation, then the Landlord must arrange for personal service, of the Court Order for Possession, issued by the Circuit Court. The Landlord then has two methods, by which, possession can be recovered. The first method, is to swear an Affidavit, confirming disobedience, to the Circuit Court Order for possession.

 

A Request for an Execution Order is then submitted to the Circuit Court, together with the Affidavit establishing disobedience, and the Affidavit of Personal Service, of the Court Order for Possession. If the County Registrar is satisfied that the papers are in order, then the County Registrar will issue an Execution Order.

 

This Execution Order can then be lodged with the local Sheriff, for the purposes of physically recovering possession, of the property.

 

The alternative to this procedure, is to personally serve the Order, and to issue a Notice of Motion, before the Circuit Court, seeking an Order attaching and committing the Tenant, for failure to comply with the Court Order.

 

Unfortunately, under the current legal regime, it is possible for a Tenant to remain in occupation of a property, for over 12 months, without paying any rent, whilst the Landlord is forced to, effectively, deal with up to three possible hearings, before the Residential Tenancies Board Adjudicator, the Tenancy Tribunal, and the Circuit Court, and even after that, the Landlord may have to use the offices of the Sheriff, for the purposes of recovering possession.

 

The Residential Tenancies Board, and the Tenancy Tribunal, can also make Determinations, in relation to payment of arrears of rent. These can also be pursued, as a simple debt, in the Courts, in the normal way. The legislation governing Residential Tenancies, is extremely technical, and it is highly advisable to ensure that every care is taken, in relation to the drafting of warning letters, and Termination Notices.

 

Patrick Mullins –Partner

BDM Boylan Solicitors, Clarkes Bridge House, Hanover Street, Cork